State v. Jefferson Iron Co.

• Decision Date: 06 November 1883
• Docket Number: Case No. 1129.
• Citation: 60 Tex. 312
• Parties: THE STATE OF TEXAS v. THE JEFFERSON IRON CO.
• Court: Texas Supreme Court

60 Tex. 312

THE STATE OF TEXAS

v.THE JEFFERSON IRON CO.

Case No. 1129.

Supreme Court of Texas.

Nov. 6, 1883.

APPEAL from Marion. Tried below before the Hon. B. T. Estes.

Information in the nature of a quo warranto, instituted by virtue of the act of 1879 (see appendix R. S., p. 45), and to obtain a judgment of dissolution as to a private corporation. R. S., art. 604. The information was filed on leave of the court, setting up:

1. Long continued non-user of the corporate franchises, to wit, since June, A. D. 1876.

2. No officers, organization or annual election since said date--the failure to perform any corporate act.

3. The concentration of all the stock and property in the hands of one individual as sole owner--holding and using same as his individual property,-- and that relator had bought out this individual. Also, that the capital and stock had never been fully subscribed.

4. Relator offered to deliver back and surrender to the state the charter and franchises of said corporation.

5. Because a receiver having been appointed, a dissolution was necessary to wind up said corporation.

A general demurrer was sustained at the instance of a party not a party to the suit or record and over the protest of the receiver and his counsel.

The first error assigned was that a party to a suit cannot be forced to present and urge a demurrer or other defense, legal or of fact. The defects in the proceeding are indicated in the opinion.

Geo. T. Todd, for relator.

C. S. Todd, for the state.

WEST, ASSOCIATE JUSTICE.

We are of the opinion, under all the facts and circumstances of this case, as disclosed by the record now before us, that the district court did not err in entering a final judgment dismissing the proceeding at the costs of the relator.

Without going at length into the matter, it may be enough to say that the original and amended information was defective in not setting up in proper form sufficient matter to authorize the judgment sought.

No citation was prayed for, and there was no service upon Geo. A. Kelley, who, it is alleged, is and was the last acting president and manager of appellee's affairs. Nor was there any appearance entered by him.

It also appears that at some period of time before the proceedings now under consideration were instituted, the affairs of the corporation, by some means that are not known or understood from the pleadings, and for some purpose not disclosed in the information, were then in the hands of a receiver.

This person, though there is no distinct averment in the information that he was cited or served, entered his appearance, and he was the only person who did appear in answer to the prayer contained in the information.

The charter and by-laws of the corporation constitute no part of the record, though purporting to be exhibits of it. In their absence it was out of the power of the district court, as it is also of this court, to determine upon what terms and conditions this charter was granted by the state.

Other matters which should have been pleaded with the fullness and particularity required in civil suits are set forth in general terms, and the legal conclusions of the pleader are in some instances substituted for the facts that should have been set up fully and certainly. State v. South P. R. R. Co., 24 Tex., 130;Bank of Columbia v. Att'y Gen'l, 3 Wend., 593.

A question is raised as to the right of a practicing attorney of the court, who is not representing any party to the record in the cause, on his own motion, to direct the attention of the court to the supposed defects in the information. Unquestionably, under such circumstances, the court could decline to hear him. But as such a person...